2007 PLP 1613 (MLD)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that the respondent filed a suit under Order XXXVII C.P.C. against the petitioner for recovery of a sum amounting to Rs.92,000, on the basis of a pro note, dated 12-2-2001. Admittedly, the petitioner was served on 16-2-2004 through summons. He entered appearance before the Court on the next date of hearing fixed by the Court according to the summons on 26-2-2004. On the said date, petitioner appeared in person as the learned Members of Bar were on strike. An application for leave to appear and defend the suit was filed by him on 28-2-2004 along with this application an application under section 5 of the Limitation Act was also filed for condonation of two days delay in filing the said application. Both the applications were dismissed by the learned trial Court vide order, dated 12-4-2004. This order is being assailed through the instant Civil Revision.

2. It is contended by the learned counsel for the petitioner that no doubt the petitioner was served on 16-2-2004 but copy of the plaint was not delivered to the petitioner along with the summons at the time of service. Even on 26-2-2004 i.e. the date fixed in the Court the petitioner was not in a position to have service of a counsel as the learned Members of Bar were on strike. The petitioner immediately having obtained legal advice filed an application for leave to defend just two days thereafter. Relies on 2003 YLR 2583 and 2003 YLR 1130.

3. On the other hand, learned counsel for the respondent opposed the arguments while contending that having been served on 16-2-2004, the petitioner remained indolent and did not consult anybody till 26-2-2004, which was the last date for filing an application for leave to appear and defend the suit. It is further submitted that the petitioner admittedly obtained a copy of the plaint on 26-2-2004 despite that he did not file any application on the same date. It is lastly argued that no explanation is offered by the petitioner for the two days delay i.e. 27th and 28th of April, 2006. Relies on 1993 CLC 2271.

4. Admitted facts of the case are that the petitioner was served on 16-2-2004. He appeared in the Court on 26-2-2004, he filed applications for leave to defend and condonation of delay on 28-2-2004. There is no denying the fact that there is a delay of two days in filing of the application. The only thing which is to be seen is whether this delay occurred in such circumstance which was a result of contribution of some other elements/factors which were beyond the control of the petitioner or the delay is totally attributable to the petitioner's conduct alone. In the former case whether the petitioner was also a contributory. According to the Court record, on 26-2-20041earned Members of the Bar were on strike, therefore, admittedly petitioner could not have legal advice on the said date. Order, dated 26-2-2004 also indicates that the .petitioner was not warned by the learned Trial Court that the same is the last date for him to file such an application although he had obtained a copy of the plaint as well. The report of the Process Server on the summons also indicates that after having obtained signatures of the petitioner, the Process Server has reported in the following words:-- Even this report does not indicate that copy of what document was delivered to the petitioner along with the summons, whether it was plaint or some other document. Meaning thereby that there was some lapse on the part of the petitioned coupled with lapse on the part of the Process Server, the Trial Court and the absence of the lawyers on account of strike. In this view of the matter, there being some lapse on the part of the petitioner as well, the delay could have been condoned, of course, subject to payment of some cost.

5. In this view of the matter, this C.R. is allowed subject to payment of cost of Rs.3000. The application for leave to defend the suit shall be deemed to be pending and decided in accordance with law and its own merits. No orders as to costs. H.B.T./M-260/L Revision allowed.